In re the Marriage (now dissolved) of: Todd David Janssen, petitioner, Respondent, vs. Kristin Marie Janssen, Appellant.

In re the Marriage (now dissolved) of: Todd David Janssen, petitioner, Respondent, vs. Kristin Marie Janssen, Appellant. A04-1884, Court of Appeals Unpublished, May 3, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1884

 

In re the Marriage (now dissolved) of:

Todd David Janssen, petitioner,

Respondent,

 

vs.

 

Kristin Marie Janssen,

Appellant.

 

Filed May 3, 2005

Affirmed

Halbrooks, Judge

 

 

Cottonwood County District Court

File No. F0-02-354

 

Larry C. Lucht, Lucht Law Offices, 906 Third Avenue, Worthington, MN 56187 (for respondent)

 

Michael P. Kircher, Sunde, Olson, Kircher & Zender, 108 Armstrong Boulevard South, P.O. Box 506, St. James, MN 56081 (for appellant)

 

 

            Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Kristin Janssen challenges the district court's order denying her motion for modification of custody without holding an evidentiary hearing.  Appellant argues that the district court abused its discretion by determining that she failed to establish a significant change in circumstances or that the children's emotional well-being is endangered by the existing joint-custody arrangement.  Because we conclude that the district court did not abuse its discretion by finding that appellant had failed to establish a prima facie case for modification, we affirm.

FACTS

            Appellant Kristen Janssen and respondent Todd Janssen were divorced in August 2002.  The district court awarded the parties joint physical and legal custody of their two children.[1]  The physical residence of the children was to alternate weekly.  Because the couple shared custody and because their gross incomes were similar, neither party was ordered to pay child support. 

            On July 20, 2004, appellant filed a motion for modification of child custody, requesting that she be granted sole physical custody and that respondent be ordered to pay child support.  In support of her motion, appellant filed an affidavit noting that shortly after the dissolution of their marriage, the couple made "what turned out to be a failed effort for reconciliation."  Appellant stated that during this "reconciliation" periodfrom January 2003 until May 2004the children moved back in and "spent virtually all of their time" with appellant.  She maintained that throughout this period, she "was solely responsible for [the children's] day-to-day care and upbringing," and that respondent had "little or no involvement with the children."  Appellant claimed that "[d]uring this time [the children] were happy and healthy.  They had a stable home environment[,] . . . [and] ha[d] been integrated into [appellant's] family with [respondent's] consent." 

            After the attempted reconciliation failed, respondent demanded that the parties reinstitute the alternating weekly custodial arrangement ordered by the district court.  Respondent, who had been working the night shift for several months, stated that he changed his work schedule to the day shift in order to accommodate this arrangement.[2] 

            In her affidavit, appellant asserted that "[t]he alternating parenting time schedule . . . is harmful to the children[,] . . . [and that] [t]he children have suffered as a result of being forced to bounce back and forth between [the] households."  She also averred that the children's "behavior ha[d] substantially deteriorated" as a result of the custodial arrangement, that they had become "unruly," "listless and unhappy," and that they expressed a desire to "stay home with mom" rather than go to respondent's home.  Appellant stated that respondent "yells at" the children for wanting to stay with her.  She argued that the current "arrangement is harmful to the children's mental health and impairs their emotional development." 

            On September 3, 2004, the district court denied appellant's motion without an evidentiary hearing on the ground that appellant had failed to present a prima facie case justifying modification.  This appeal follows.

D E C I S I O N

            Appellant contends that the district court erred in denying her motion for a modification of child custody without holding an evidentiary hearing.  The district court has broad discretion in determining child-custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  When reviewing a district court's decision denying a motion for modification of custody without an evidentiary hearing, we apply an abuse-of-discretion standard.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The district court's findings are to be upheld unless clearly erroneous.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  "A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made."  Id. (quotation omitted). 

Under Minnesota law,

 

the court shall not modify a prior custody order . . . unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.  In applying these standards the court shall retain the custody arrangement . . . that was established by the prior order unless:

 

. . . .

 

(iv) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

 

Minn. Stat. § 518.18(d) (2004) (emphasis added).

            A party seeking a modification of child custody must submit an affidavit asserting facts sufficient to make a prima facie showing of facts justifying such modification.  Minn. Stat. § 518.185 (2004); Weber v. W.P.W., 653 N.W.2d 804, 809 (Minn. App. 2002).  To establish a prima facie case, the moving party must establish four elements:

(1) a change in the circumstances of the child or custodian, (2) that a modification would serve the best interests of the child, (3) that the child's present environment endangers his physical or emotional health or emotional development, and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

 

Weber, 653 N.W.2d at 809 (citation omitted).

"In determining whether the moving party has established a prima facie case, the district court must accept the facts in the moving party's affidavit as true."  Id. (citing Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981)).  If the affidavit does not allege facts that, if true, present sufficient grounds for modification, the district court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  But if facts sufficient to support a modification of custody are asserted, "the court must hold an evidentiary hearing to determine the truth of the allegations."  Geibe, 571 N.W.2d at 777.  Although the district court is to disregard any directly contrary affidavits, it may use an opposing party's affidavits to "explain the circumstances surrounding the accusations."  Id.at 779.  Here, the district court's order indicates that it properly assumed that the allegations in appellant's affidavit were true and did not consider any evidence submitted by respondent that contradicted such allegations. 

When the district court has denied a motion for modification of child custody without holding an evidentiary hearing, it is not required to provide specific findings of fact.  See Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (concluding that the "requirements for specific findings do not apply to the evaluation of affidavits").  "[W]hen an evidentiary hearing is denied, the record consists of the affidavits the moving party submitted in support of the modification motion.  Because the record is documentary, the appellate court can review the [district] court's determination in a meaningful manner despite the lack of specific findings."  Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992).

A.        Change in Circumstances

To warrant custody modification, a change in circumstances must be significant and must have occurred since the original custody order rather than being a continuation of conditions that existed prior to the order.  Weber, 653 N.W.2d at 809; Geibe, 571 N.W.2d at 778.  Here, the district court found evidence that a significant change in circumstances, due to the living arrangements during the reconciliation period, "might possibly exist."  The district court then noted that this situation presented it with "a quandary," because the change was the result of the joint action of both parties.  It stated: "Although the court does not wish to dissuade parties from reconciliation, the court feels that allowing parties to seek modification due to their own actions is equally ulterior to Minnesota law."  Accordingly, the district court found that appellant had not alleged a change of circumstances sufficient to justify modification.

Allowing appellant to establish a change in circumstances based on conditions founded, at least in part, on her own actions is problematic.  In Roehrdanz, this court noted that "a [moving party's] failure to comply with court orders cannot be used to establish the requisite change of circumstances under Minn. Stat. § 518.18."  438 N.W.2d at 690; see also Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986) (questioning "whether a parent should be permitted to use her own non-compliance with a court decision in order to establish a requisite change of circumstances").

At oral argument, appellant cited Taflin v. Taflin, 366 N.W.2d 315 (Minn. App. 1985), for the proposition that placing children in a living arrangement other than that ordered by the court is sufficient to constitute the requisite change of circumstances.  But Taflin may be distinguished from the present case.  In Taflin, this court found a change of circumstances sufficient to warrant an evidentiary hearing on the father's motion for modification of custody where he contended that the mother had voluntarily relinquished the children to her grandparents and had limited contact with the children for over two years.  Id. at 320.  Thus, in Taflin, it was not the moving party's noncompliance with the court order that was being used to establish the change of circumstances.

This case bears more similarity to Roehrdanz and Lundell.  Here, appellant and respondent jointly agreed to disregard the custody agreement as part of an attempt to reconcile.  Attempts at reconciliation are to be encouraged, but a party should not be allowed to later take advantage of a situation resulting from the failure of such an attempt to demonstrate that a change of circumstances has occurred for the purpose of modifying custody.  Holding otherwise might discourage couples from attempting to reconcile for fear that failure could lead to a modification of child custody.  Thus, the district court did not abuse its discretion by concluding that appellant had not demonstrated a change of circumstances sufficient to justify modification.

Appellant also suggests that the alleged preferences of the children to live with her constitutes a change of circumstances sufficient to warrant an evidentiary hearing.  It is true that a child's preferences regarding custody may constitute a sufficient change in circumstances, "[b]ut a stated preference does not, by itself, mandate that the [district] court hold an evidentiary hearing."  Weber, 653 N.W.2d at 809-10.  Consequently, the district court did not abuse its discretion by denying appellant's motion despite the alleged preferences of the children.

B.        Endangerment

To justify a modification of child custody, any change in circumstances "must endanger the child[ren's] physical or emotional health or development."  Id. at 809.  "[I]n order to establish danger to a child's welfare, a parent's conduct must be shown to result in an actual adverse effect on the child[ren]."  Id. at 811.  Moreover, demonstrating endangerment "demand[s] a showing of a significant degree of danger."  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (emphasis added). 

In her affidavit, appellant states that "the children have suffered as a result of being forced to bounce back and forth between [the parties'] households."  She indicates that they are "listless and unhappy," that they become "upset" when it is time for them to go to respondent's home, and that they "have become unruly."  Appellant also notes that the children are "acting differently" toward appellant's mothertheir grandmotherbecause of "derogatory comments" made by respondent. 

The district court noted the alleged deterioration of the children's emotional health, but concluded that appellant had "failed to make a showing of significant danger to the children's emotional well-being."  Some type of negative reaction on the part of young children to a changing custody arrangement is unfortunate, but not unexpected.[3]  Even assuming appellant's allegations are true, they do not demonstrate the "significant degree of danger" required to modify child custody.  Ross, 477 N.W.2d at 756.  Because appellant's affidavit did not allege facts sufficient to sustain a finding that resuming the prior joint-custody agreement has endangered the children, the district court did not abuse its discretion by denying appellant's motion without an evidentiary hearing.

C.        Best Interests of the Children

The children's best interests are determined according to the factors listed in Minn. Stat. § 518.17 (2004).  Weber, 653 N.W.2d at 810.  The district court made findings regarding a number of these factors which it "deem[ed] relevant."  Although it concluded, based on appellant's affidavit, that these factors weighed in favor of modification, the district court did not conclude that modification of custody was necessary to serve the best interests of the children.  There is evidence in the record to reasonably support the district court's conclusion.  Geibe, 571 N.W.2d at 777.

D.        Balance of Harm

The district court found that this factor weighed in appellant's favor.  The district court concluded, based on the facts alleged in appellant's affidavit, that "reinstituting [appellant's] primary custody will result in no harm, but rather an improvement in the children's well-being."  (Emphasis added.)  Based on the record, the district court did not abuse its discretion in so finding.  Id.

The district court ultimately denied appellant's motion without holding an evidentiary hearing, concluding that appellant had failed to establish a prima facie case for modification.  Because the district court did not abuse its discretion, we affirm.

            Affirmed.

[1] The children were seven and four at the time of the dissolution.  One of the children will be ten in May; the other will be seven in April. 

[2] In a supplemental affidavit, appellant claimed that respondent "did not go back to [the] day shift to have more time with the children[;] . . . he took the lower paying [day] job so he would not have to pay as much child support." 

[3] The attempt at reconciliation may have delayed the children's reaction by conveying to them hope that their parents would reunite.